Rule 31 of the Family Law Rules permits either party to an application to bring a contempt motion to enforce an order made by the court, despite another penalty being available. Where a court finds a person in contempt of the court, it may issue a number of orders including: imprisonment for any period of time; payment of a fine; payment to the opposing party as penalty; or anything else the court deems appropriate.

In the matter of Corneau v Eriksen, before Mr. Justice Pelletier in the Ontario Superior Court of Justice, the Respondent Mother brought a motion for contempt in connection with the non-compliance of a consent order issued November 23, 2011. The main issue before the court was whether the Applicant’s non-compliance was the result of an intervening factor rendering the Applicant incapable of compliance, or whether he willfully disobeyed the court order.

Background

Between 2001 and 2007, the Applicant and Respondent Mother were involved in a common law relationship. During the course of their relationship, the Respondent and her three children from a previous union lived with the Applicant, with certain interruptions. Over the same period, the Applicant undertook certain business ventures in which the Respondent participated and had a stake.

Upon separation, an agreement was executed on January 2rd, 2008 which decreed, among other things, that the Applicant would purchase both the Respondent’s shares in a certain enterprise as well as title to certain properties. The agreement further stated that the Applicant would make payment of salaries to the Respondent for a specified period of time.

The factual and legal issues were of some complexity and on February 10, 2010 and application was brought before the court.

At a November 23, 2010 case conference, the court issued a consent order which stipulated that the parties exchange a number of pertinent materials, including Affidavits of Documents within 20 days, financial statements, income tax returns, and notices of assessment. Questioning of both parties was to take place on or before the end of January 2011.

At the time of the motion, very few of the terms of the agreement had been complied with by the Applicant. As it so happened, the Applicant had encountered significant obstacles while attempting to obtain completed financial statements for the two companies in question. As a result of the Applicant’s lack of disclosure, the Respondent claimed to have suffered significant financial prejudice.

Was the Applicant in Contempt of Court?

The court began its analysis with a review of the definition of “contempt” and the governing legislation. Citing G(N) c Services aux enfants & adultes de Prescott-Russell (2006), Justice Pelletier contended,

It is well established that for contempt to be found, the order alleged to have been breached must be clear and specific as to the parties’ obligations, the non-observance of the order must be both deliberate and willful, and the specific intent associated with deliberate and will non-compliance must be established beyond a reasonable doubt.

In the case before the court, it was evident that the Applicant had not complied with the first of three November 23, 2010 orders; specifically, providing an affidavit of documents.

Thus, the court was left only to determine whether the Applicant’s non-compliance was deliberate and wilful. In reaching his decision, Justice Pelletier highlighted a number of crucial facts:

The 20-day limit for the exchange of affidavits of documents was suggested by the Applicant and mutually agreed upon. If the Applicant had had a better understanding of the time requirements in his case concerning the compilation of relevant and available documents, he would have suggested a later date.

The Applicant proposed and agreed to the questioning before the end of January 2011, demonstrating an eagerness to pursue the issues rather than a desire to thwart the process.

The Applicant did not ignore his non-compliance with the order. Just three days after the deadline for delivering an affidavit of documents, the Applicant’s counsel addressed the delay by letter to the Respondent’s counsel.

In the end, Justice Pelletier construed the Applicant as a man intent on dealing with the court matter promptly and without delay. The court considered the Applicant’s sensitivity to deadlines and his willingness to address problems in the timeline agreed to by the parties.

Finally, Justice Pelletier was of the opinion that the Applicant’s eagerness to negotiate an extension of time as well as his consistent ongoing correspondence to opposing counsel was indicative of a litigant anxious about the expiry of time within which to meet certain disclosure obligations.

In the end, Justice Pelletier, dismissing the Respondent’s contempt motion, held that,

To find the Applicant in contempt of the November 23, 2010, order would be to disregard his inability to completely comply with the order, and overlook the efforts, undertaken immediately and persistently, to correct the situation.

In this case, one is certainly left with the impression that justice was served. The case also highlights the importance of continued communication among parties and the dangers of avoidance. This case easily could have gone the other way had the Applicant reacted to his inability to access documents by “hiding his head in the sand.”

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